After Dianne Feinstein and other Democratic senators lit into a conservative Catholic judicial nominee for her religious views, it was refreshing to see people who are neither Catholics nor conservatives come to the nominee’s defense. Noah Feldman and Princeton University president Christopher Eisgruber have rejected Feinstein’s line of attack against Notre Dame law professor Amy Coney Barrett.
A progressive Catholic, on the other hand, has come to the senators’ defense. Michael Sean Winters, writing in the National Catholic Reporter, raises two questions. First, are conservatives trying to have it both ways? They demand that religious people be able to participate in public life without casting aside their religion. Can they then ask that the religious views of these participants in public life be placed beyond scrutiny? Second, shouldn’t Barrett’s faith inform her judging?
To start with the second question: The religious-conservative defense of faith in public life has usually been focused on legislators rather than judges. That’s because, as conservatives especially stress but others also recognize, legislators are supposed to have a bigger role in shaping the laws according to their values than judges are. Even in the legislative arena, Catholic conservatives have generally also emphasized the necessity of grounding laws in reasons that are accessible to those with different religious views. But faith has more room to influence the conduct of a legislator’s job than a judge’s.
That does not mean that a judge’s Catholicism should have no impact whatsoever on his performance of his job. Much of this controversy began because Barrett wrote an article about how a judge’s Catholicism might affect recusals in death-penalty cases. Catholicism should also buttress some of the judicial virtues. All judges should be truthful about and obedient to the law, but Catholic judges have a reason that atheist judges do not: It would be a sin to be anything else.
One can grasp this point without denying that an atheist can be a good judge, or affirming that a Catholic judge is more likely to be a good judge than a Jewish or Protestant judge. Think of the parallel to charity: Nobody would say that it is incidental to Catholicism, but Catholics do not assert a monopoly on it.
As for the first question: There would be nothing wrong with asking Barrett about her view of the relationship between faith and judging. She did, again, write a law-review article on one aspect of that relationship. A senator could reasonably ask her to summarize her views, or raise an objection to her argument. Defenses of Feinstein’s remarks pretend that’s all she was doing. Feinstein’s actual remarks suggest that she was treating the strength of Barrett’s faith as evidence against her fitness to be a judge. That’s what her aides have kept doing since the hearing.
Catholics of all stripes should recognize what’s wrong with that stance, and for that matter so should non-Catholics. Thankfully many of them do.